The 2011 Insite decision, found the Controlled Drugs and Substances Act’s (“CDSA’s”) s. 4 criminal prohibitions on possession of controlled substances (“simple possession”) engaged Canadian Charter of Rights and Freedoms (“Charter”) s. 7 interests (life, liberty, and security of the person). This, however, didn’t violate the Charter, as CDSA exemptions, like for Insite’s supervised consumption site (“SCS”), were a “safety valve” preventing criminal prohibitions from violating principles of fundamental justice.

Following the public health emergency of the overdose epidemic, now into its fifth year, this “safety valve” is clearly failing. BC’s Chief Coroner recently reported record overdose deaths for 2021 (1,534 by September) and nearly 23,000 persons who use drugs (“PWUDs”) have died in Canada from 2016 to March 2021. In 2021, around 20 PWUDs/day died, with deaths highest in BC, followed by Alberta and Ontario (90% of deaths this year). Rates began dramatically increasing following the COVID-19 pandemic.

PWUDs and other harm reduction activists have long called for decriminalization of drug activities, like simple possession and drug trafficking. They view drug use as a health issue (with access to harm reduction encouraged) not a moral issue (where punishment is warranted). Several foreign jurisdictions (Portugal and recently Oregon) have decriminalized simple possession with positive health outcomes.

Following the spike in deaths in early 2016, BC declared a public health emergency (April 2016) and yet neither Canada nor any other province has done so. This spike is attributed to contamination of illegal supplies with powerful opioids or depressants like fentanyl, carfentanil, or benzodiazepine, as illegal producers use these drugs as fillers to reduce production costs.

Recently, many experts, organizations, political parties, and some provincial and municipal governments have formally called for simple possession decriminalization or gone a step further and requested geographic exemptions from the application of CDSA s. 4, pursuant to the s. 56 exemption process, developed following the Insite decision. These include public health officials (such as Vancouver Coastal Health’s Dr. Patricia Daly and BC Provincial Health Officer Dr. Bonnie Henry), BC Premier John Horgan, the federal New Democratic Party and Green Party, the federal Liberal Party membership, the Canadian Association of Chiefs of Police, and an expert task force commissioned by Health Canada. Vancouver, Toronto, and Montreal, and the Union of Ontario’s Big City Mayors all support decriminalization. Vancouver and BC have already submitted s. 56 applications for review by Health Canada, with Toronto, Montreal, and Ottawa, reportedly planning applications. The NDP’s Don Davies and Liberal’s Nathaniel Erskine-Smith both introduced private members’ bills seeking decriminalization last Parliament.

Despite these calls, the federal government continues to reject simple possession decriminalization. They have implemented important reforms, like increased permissions for SCSs and overdose prevention sites, approving the overdose reversing drug naloxone, and amnesty for possession offenses after reporting overdoses (the Good Samaritan Drug Overdose Act). These reforms rely on simple possession decriminalization but are insufficient to slow the tragic overdoses. Many PWUDs and advocates now recognize that simple possession decriminalization is merely a first part to necessary comprehensive reforms, which also likely requires drug trafficking reforms allowing regulated “safe supply” of illegal drugs. PWUD advocacy groups, DULF and VANDU, have operated a “safe supply” (also called a compassion club) program and recently submitted a s. 56 request to relax CDSA s. 5 trafficking controls. The national PWUD group, CAPUD, and four individuals recently launched BC litigation seeking simple possession decriminalization and partial decriminalization for necessity trafficking (including for “safe supply” activities). That action relies on s. 7, 15 (equality), and 12 (freedom from cruel and unusual punishment) rights.

Whether these decriminalization calls will ultimately succeed is unclear, however, the continued tragedy of the overdose epidemic shows no signs of slowing, and these calls will only continue to grow until real and radical government action is taken.